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95 Cards in this Set
- Front
- Back
Sub-Lease |
A Lease between the original Lessor (Sub-landlord) and a new Tenant (Subtenant) where no contract relationship exist between the original Landlord and the new Tenant (Subtenant) |
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Assignment |
A Lease when the New Tenant steps into the Lease of of the old tenant creating a relationship between the Landlord and New Tenant |
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What happens to a sub-lease if the master lease terminates |
The Sub-lease terminates as well unless 1. Landlord signed Non-disturbance Agreement 2. Lease terminates by voluntary surrender by master tenant |
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Common Law approach to distinguish between Sub-Lease and Assignment (Bright Line Rule) (Most Common) |
*Assignment: conveys the whole term of the original tenant;s interest *Sub-lease: tenant grants an interest less that his own or retains reversionary interest |
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Modern Rule for Distinguishing between Assignment and Sublease (Not Common) |
* Look at parties INTENT *Use of terminology is not "conclusive" ie. terms Sublease, assignment still use intent. * No Bright Line rule about retention of reversionary interest |
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Marital Property Approaches Group 1 (gender biased rules) |
- Husband can convey exclusive right to possess entire estate (wife keeps right of survivorship) -only in one state may creditors of husband alone reach the property |
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Marital Property Approaches Group 2 |
- Creditors may seize entireties property to satisfy ONE spouse's debts, subject to other spouses right of survivorship -So, a creditor could seize the debtors spouse's 1/2 share during life, but creditor would lose interest upon death of debtor. |
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Martial Property Approaches Group 3 |
-Neither spouse can convey property w/o consent of other. -creditors may not levy upon the estate at all for separate debts of one spouse |
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Marital Property Approaches Group 4 |
-Spouse can convey his right of survivorship -but NO spouse can convey his rights of possession during life -Thus right of suvivorship is reachable by creditors pf one spouse, but no other interest - So creditors must wait till death of debtor to gain all. |
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HawaII's View of Martial Property |
* Spouses do not have individual shares. -Spouses do not have separate divisible interest - Marital Unit rights =ownership can convey only by dual consent. Creditor of one spouse may NOT reach entireties property |
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Non-Freehold Estates 4 types |
- Term of years - Periodic tenancy - Tenancy at will - Tenancy at sufference |
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Tenancy at Sufferance |
*Arises when a tenant holds over -Landlord options - Hold the tenant to a new Tenancy (can be implied) - Evict the tenant |
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If a Landlord accepts Rent from a Holdover tenant does it create a new tenancy? |
Yes, Type - depends on jurisdiction but most is periodic tenancy baised on prior lease others - Term of years |
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Rules for a Lease |
Must be in writing if term is a year or more It is a contract or a conveyance? -Historically a conveyance - Modern a contract |
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Which is better for a Landlord The Lease to be a conveyance or a contract? |
Conveyance, because had few implied obligations to landlord. |
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English Rule for Leaseing |
*A person would not knowing contract for a lawsuit, so Landlord must give ACTUAL Possession at time of Lease |
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American Rule for Leasing |
*Landlord must provided possession, but not actual, tenant would need to evict holdovers |
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What is the general rule for what a co-tenant in possession is liable to the other co-tenants for rent? |
-No obligation to pay unless the occupying co-tenant has OUSTED the other co-tenant |
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OUSTER |
When the occupying Co-Tenant refusing the Non-occupying Co-Tenant the right of possession. |
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Is a demand to "vacate or pay rent" a form of ouster? |
No, the co-tenant must demand possession not rent. |
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Estoppel |
A bar that prevents one from asserting a claim or right that contradicts what he has said or done before. |
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Statutory Estoppel |
? |
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Equitable Esstoppel |
sometimes known as estoppel in pais, protects one party from being harmed by another party's voluntary conduct. Voluntary conduct may be an action, silence, Acquiescence, or concealment of material facts.
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UCC 2-403 (1) |
A purchaser of goods acquires all title which his transferor had or had power to transfer... |
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UCC 2-403(2) Statutory Estoppel |
Any entusting of possession of goods to a merchant who deal in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business. |
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UCC 1-201(9) |
...Person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in ordinary course from a person....in the business of selling goods of the kind. |
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UCC 2-403(3) Entrustment |
Entrusting includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between parties....[even if under larcenous circumstances]. |
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UCC 1-201(20) Good Faith |
Honesty in fact and observance of reasonable commercial standards of fair dealing |
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UCC 2-403(2) Elements of Statutory Estoppel |
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What is an estate? |
An interest in land that gives the owner the right to possess the land |
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Estates that constitute a right to possess NOW are called? |
-Possessory estates -present estates |
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Estates that constitute a right to possess in the future are call? |
Future interest (future estates) |
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An estate is generally created by? |
A conveyance also known as a Grant. |
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Examples of a conveyance or grant |
Gift Sale Testamentary conveyance (will) |
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Intestate succession |
transfer of property to an heir after they die without a will |
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Devise? |
a gift of real property made in a will. To make a gift of real property through a will |
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Devisee |
One who receives real property by way of a will |
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Heir |
One who takes through the laws of intestate succession can only be a heir after the owners death with out a will |
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Fee Simple Absolute |
Full ownership no one else has any rights can be divided into smaller estates. Potentially infinite duration, passes on to heirs or devisee's if not sold. No restrictions, freely alienable |
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Fee Simple Determinable |
A defeasable fee That terminates automatically biased on a stated event. right of possession reverts tot he grantor The grantors future interest is called Possibility of Revertor |
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Fee Simple Determinable Key words |
So long as While used as Until such time as During the time |
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Fee Simple Subject to a Condition Subsequent (FSSCS) |
Upon the occurrence of a stated event the grantor has right to retake property Does not automatically happen Grantor must assert his right to retake though courts Right of entry or power of termination |
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Key words to identifying FSSCS |
but if on condition that provided that provided that if however |
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Fee Simple Subject to an Executory Limitation |
Upon an occurrence of some condition or violation of a condition, the future interest is in a third party not the grantor, |
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Life Estate |
A lessor estate devised from a Fee estate where the possession is given for the life of the possessor |
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Reversion |
Future interest retained by the grantor following the expiration of a lessor estate |
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remainder |
a future interest in someone other than the grantor that follows the expiration of any lessor estate |
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Non-Free hold Estates |
Tenancies, as in landlord-tenant Non-freehold estates convey by lease rather than by deed |
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3 Types of Remainders |
- indefeasibly vested remainder - vested remainder subject to defeasance -contingent remainder |
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Indefeasibly Vested Remainder |
a remainder given to some one who is 1. born 2 ascertainable, and 3. as to which there are neither unmet express preconditions a party must must meet to receive it or keep it. |
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Contingent Remainder |
A remainder (1) given to someone who is unborn (2) given to someone who is not ascertainable or (3) which can only become possessory upon satisfaction of an unmet express condition |
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Vested Remainder Subject to Defeasance |
a remainder, where no conditions to the recipient's taking, but as to which there are express conditions for keeping. look for conditions expressed in terms of the holder's losing a interest that has vested |
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Destructibility of Contingent Remainders |
if the preceding estate expires and the condition precedent for the contingent remainder has not occurred, the remainder is destroyed. |
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What are the four Common Law Rules Furthering Marketability |
The Doctrine of Merger The Doctrine of Worthier Title The Rule in Shelley's Case The Common Law Rule Against Perpetuities |
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The Doctrine of Merger |
Whenever successive Vested estates are owned by the same person, the smaller of the two estates is absorbed by the larger |
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The Doctrine of Worthier Title |
When the grantor makes an inter vivos conveyance of real property to one person and at the same time attempts to create a future interest in the grantor's own heirs, the future interest in the heirs is void and the grantor takes a future interest instead. |
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Inter vivos |
a transfer of property by agreement between living persons and not by a gift through a will |
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The Rule in Shelley's Case |
If a life estate is given to one person and a remainder is given to that persons's heir in the same instrument, the remainder actually goes to the life tenant O to A for Life, the to A's heirs = O to A for Life, then to A creates FSA in A |
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Common Law Rule Against Perpetuities (Purpose) |
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What are the Advantages of RAP (Rule Against Perpetuties) |
*Balances desire of current owner to determine what will happen to his property in the future against desire of eventual holders to be free from "dead hand" control Increases control by living, who are better position to determine how property can be used. |
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Rule Against Perpetuities RAP |
No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. |
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RAP does not apply to what future interest? |
-Reversion Right of reentry/power of termination possibly of reverter |
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Acquisition of Property rights by Capture (fox case aka Pierson v. Post) |
Pierson v. Post: The pursuer manifest an unequivocal intention of appropriating the animal to his individual use, has deprived it of its natural liberty and brought it within certain control |
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Acquisition of Property right by Capture (Whale aka Ghen v. Rich) |
Ghen v. Rich: a common practice for wild animals is that when a hunter has done all that is practical in order to secure the animal, it becomes his property because of sufficient control. Local common usage and custompPractices acceptable means for certain control |
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Chimney Sweep Rule Finders Law |
Finding and possession of the property, gives the finder title over all but the true owner |
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Finder Law Unattached and Attached Property |
found property not attached or not embedded goes to the finder, not possessor of the land. |
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Finder Law Embedded Property |
Embedded Property goes to the owner of the property the item was embedded. |
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Serving as an Agent Finder Law |
While acting as an agent and property is found, the property goes to the master. |
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Abandoned Property |
The true owner no longer wants to possess the property and give up all right to the property Better title to the finder against the entire world to include against true owner |
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Lost Property |
Property that the owner has unintentionally and involuntarily parted with and does not know where it is. Finder has better title to entire world except to true owner. |
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Mislaid Property |
Property mislaid is voluntarily placed in a certain location by the owner and then forgotten about. Property goes to Property owner, who has better title to all but true owner. |
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Treasure Tove |
Property that have been concealed for a great length of time that the true owner is not ascertainable. Finder has better title against whole world except true owner. |
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Conversion |
One's wrongful possession or disposition of another;s property as if it were ones own. |
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Adverse Possession |
One acquires title by adverse possession by maintaining the property that is held with hostility, continuously, actually, open and notoriously, exclusively, and for the required statutory period. |
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H-CANOE |
Elements of Adverse Possession Hostile Continuous Actual Open and notorious Exclusive |
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Hostile AP |
1. Claimant is not claiming title under record owners title (not with owners permission), and 2. possession occurs with requisite mental state |
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Connecticut Rule AP Hostile |
Objective theory Mental state irrelevant, just that you are using the property for valid purpose. |
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Maine Rule AP Hostile |
Subjective Rule also Know as Aggressive Trespasser Must know property not yours and you have intent on taking property |
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Good Faith Standard AP Hostile |
The possessor must think that they owned the property. |
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Continuous AP |
The claimant must possess the land w/o significant interruption and must be as continuous as that of the true owner. |
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Actual AP |
Must actually be using property as a true owner wold. |
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Tacking AP |
The ability to add a prior possessor time toward the statue of limitations provided that the transfer was in writing and was not taken by force. |
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Open and Notorious AP |
Actsof possession are deemed sufficiently open and notorious if they are conductedin a manner which would put a person of ordinary prudence on notice of theclaim
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Exclusive AP |
Exercise dominion and control like a true owner would be Excluding others as much as a true owner would. |
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Adverse Possession of Chattel approaches |
1. H-CANOE - Majority 2. Demand and Refusal - Minority 3. Discovery Rule |
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Demand and Refusal AP of Chattel |
the clock starts to run when the true owneractually demands return of the item and the possessor refuses to return it.Implicit in this is the idea that the true owner must, of course, discover whohas the chattel before a demand can be made. Which means that the clock willnever start to run until the chattel is actually found
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H-CANOE AP of Chattel |
Thestatutory period starts to run when all of the elements of H-CANOE are met andcontinues to run as long as all of these elements are satisfied
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Discovery Rule AP of Chattel |
Owner first knew, or reasonably should have knownthrough the exercise of due diligence, of the cause of action, including theidentity of the possessor of the paintings. To apply this rule, a courtwould have to identify a specific datewhen the record owner knew, or should have known who had the painting.
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Three requirements for gift personal property |
1. Intent 2. delivery 3. acceptance |
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Intent Element of Gift |
Donor must intend to make a present transfer ofan existing interest in the property
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Delivery Element of Gift |
Donor must deliver possession (hand over theproperty) to the done with the manifested intention to make a gift
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Acceptance Element of Gift |
Acceptance by the donee is required. Courts give Acceptance by donee as automatic if item has value. |
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What if actual Delivery is Impractical for a gift. |
Can use constructive delivery or symbolic delivery |
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Symbolic Delivery |
handing over something that is symbolic of theproperty given
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Constructive Delivery |
handingover a key or some object that will open up and access to the subject matter ofthe gift
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